'Nuff said

(Taking context-optional note of thought-provoking quotes)

To combat insurgents and protect civilians simultaneously, governments could choose to use ground troops, which are arguably better equipped to discriminate between innocent bystanders and insurgents and their accomplices. Although militaries risk significantly higher casualties by deploying their troops rather than dropping precision bombs, this sacrifice is precisely what the logic of just war requires: that civilians not become more expendable than a country's armed forces.

-- Dr. Charli Carpenter (left), Assistant Professor in the Department of Political Science at the University of Massachusetts-Amherst, in "Fighting the Laws of War: Protecting Civilians in Asymmetric Conflict," a review essay appearing in the current edition of Foreign Affairs. Carpenter takes issue with authors who argue, from the left and the right, that extant laws of war are insufficient to meet the challenges of contemporary military engagements.

Go On! Law of War Detention

(Go On! is an occasional item on symposia and other events of interest)

A discussion on "Law of War Detention" will be held from 3-4:30 p.m. next Wednesday, February 9, at Tillar House, the headquarters of the American Society of International Law, 2223 Massachusetts Avenue, N.W., Washington, D.C.
Speakers include IntLawGrrls guest/alumna Laurie Blank (left), Director of the International Humanitarian Law Clinic at Emory University School of Law in Atlanta; Joanne Mariner (below left), Director of the Human Rights Program and Rita E. Hauser Distinguished Lecturer in Human Rights at Hunter College in New York and former Director of the Terrorism & Counterterrorism Program at Human Rights Watch; Eric Jensen, formerly Chief of the International Law division of the Army's Office of the Judge Advocate General and now a Visiting Assistant Professor at Fordham Law in New York; and Benjamin Wittes, Senior Fellow in Governance Studies at D.C.'s Brookings Institute. Moderating will be Dick Jackson, Special Assistant for Law of War Matters, U.S. Army, and Chair of the Lieber Society on the Law of Armed Conflict, the ASIL interest group that's sponsoring the panel. Topics to be discussed:
► Who may be detained?
► For how long?
► Under what standard of treatment?
Register here -- the panel and reception to follow are free, but space is limited.

Where is the Zone of Combat?

(My thanks to IntLawGrrls for the opportunity to contribute this guest post)

Battlefield.
Combat area.
Theater of operations.
These traditional terms in military discourse and the modern English language have described wartime areas for decades – indeed centuries. In today’s conflicts, states fight against nonstate actors and terrorist groups that are unbounded by sovereign territorial boundaries and that prefer tactics aimed at civilians often far from any traditionally understood battlefield. Those facts can easily confound attempts to use these existing terms effectively.
In particular, the present conflict between the United States and al Qaeda and affiliated terrorist groups poses significant yet seemingly fundamental questions, not only about the law applicable to operations against terrorists, but also about where the conflict is taking place and where that law applies. Beyond the obvious areas of Afghanistan, Iraq, and the border areas of Pakistan, there is, at present, little agreement on where the battlefield is – i.e., where this conflict is taking place – and an equal measure of uncertainty regarding when it started and when and how it might end. (credit for photo of memorial following 2008 attack in Mumbai, India)
Many practitioners and scholars now suggest that the traditional battlefield – once populated by tank battles and infantry – has been replaced by a more complex environment, sometimes called the zone of combat. Blending armed conflict and operational counterterrorism, the zone of combat has been characterized as anywhere terrorist attacks are taking place, or perhaps even being planned and financed. Even when not conceived of as broadly, the zone of combat encompasses areas beyond the traditional battlefield and could likely include any area where military responses to terrorists and terrorist attacks take place.
The “zone of combat” may simply seem to be yet another modern descriptive term that offers a clearer representation of real life than its antecedent. But it raises important and interesting legal questions. The fact that the zone of combat is movable and changeable only complicates the nature of these questions.
When many argue – and the United States consistently asserts – that the United States in engaged in a global war against Al Qaeda and other terrorist groups, one natural question is where is the battlefield, or zone of combat, in this global struggle against terrorist groups? And how do we identify it?
I explore these questions in an article in the forthcoming volume of the Georgia Journal of International and Comparative Law, entitled “Defining the Battlefield in Contemporary Conflict and Counterterrorism: Understanding the Parameters of the Zone of Combat.”
These questions of where and when are critical for understanding how to apply the law to questions of targeting, detention, interrogation, direct participation in hostilities, and trials, among others. Just as relevant legal frameworks help us understand the substantive scope of the applicable law within the zone of combat, those frameworks can help illuminate its temporal and geographic scope.
Traditional conceptions of belligerency and neutrality do not effectively address the complex spatial and temporal nature of terrorist attacks and states' responses. Nor can human rights law or domestic criminal law, which are both legal regimes of general applicability, offer a useful means for defining where a state can conduct military operations against terrorist groups.
In contrast, the law of armed conflict – naturally limited and triggered by the existence of an armed conflict – provides a framework not only for when it applies, but where and for how long. By using this framework and analogizing relevant factors and considerations to the conflict with al Qaeda, we can identify factors that can help define the zone of combat.
► First, some terrorist attacks and activities fall closer to the traditional conception of hostilities as understood within the law of armed conflict. Areas where these types of attacks occur naturally have a stronger link to a battlefield. In addition, when such attacks or activities occur regularly or over a defined time period, we can more clearly define the temporal parameters of the zone of combat as well.
► Second, in declaring that it is “at war with terrorists,” a state may envision the whole world as a battlefield. But the state’s actual conduct in response to the threat posed offers a more accurate lens through which to view the battlefield. Areas where the state uses military force, particularly multiple facets of military power, on a regular or recurring basis, should fall within the zone of combat while those where the state chooses diplomatic or law enforcement measures, or relies such efforts by another state, do not demonstrate the characteristics of the battlefield. This same analysis holds true for the temporal parameters as well.
Applying this type of analysis in a simplistic manner does indeed leave room for abuse by states, which might overuse military power merely to try to squeeze otherwise non-battlefield areas within the zone of combat. While this is certainly a consideration, government response is only one factor to take into account in assessing the parameters of the zone of combat and both the nature of the international community and the great expense, both human and material, of applying military might where not necessary will likely weigh against any such abuse.
►The third factor – territory – requires the most creative application. Terrorist groups do not use or connect to territory in the same manner as either states or non-state actors seeking to gain power or independence. Conflicts against terrorist groups, as a result, do not follow the boundaries on a map or the dictates of state sovereignty or international legal niceties. But territory can be a contributing factor to a paradigm defining the zone of combat nonetheless.
Looking at territory from a new angle, we can see that terrorists use certain areas for safe havens and training camps and identify certain areas as prime targets for repeated attacks. Those territorial areas must therefore have a stronger connection to the zone of combat than others, both geographically and temporally, because the way terrorists use particular areas will naturally change over time.
Taken as a whole and considered in light of existing jurisprudence and policy considerations, these analytical tools form a first step in the critical task of identifying where and when a state can conduct operations within an armed conflict framework. Such identification is a necessary companion to the ongoing debate about whether and how a state can conduct operations within such a framework.

On the Job! Crimes of War Project

(On the Job! pays occasional notice to interesting intlaw job notices)

The Crimes of War Project, a nonprofit organization that promotes knowledge of the laws of war and their application in contemporary conflicts, is seeking an Executive Director.
The Project provides analysis of current conflicts from the perspective of the laws of war to journalists, policymakers, academics, and the NGO community, in an effort to help prevent violations, to bring attention to violations that occur, and to push for accountability. It is known especially for publishing Crimes of War: What the Public Should Know (rev. ed. 2007).

The Executive Director inter alia will: lead the team at the Project's Washington, D.C., headquarters, and elsewhere; coordinate web and print publications; develop trainings and other programs; and, through media contacts and other means, entrench the Project's place as a foremost source of information about war crimes and international justice. Management, writing, and communications skills, as well as knowledge of international humanitarian law and ability to present it clearly, are required..
The applications period opened May 31, and will remain open till the position is filled. Applicants should send a letter of interest and résumé to Office@crimesofwar.org, or call 202-638-0230 for further information.

US ♥ international law

Well, sort of.
Consider this excerpt from the brief just filed by the United States in a Guantánamo detainee's habeas corpus case:

Petitioner cites the panel majority’s statement that the 'premise that the war powers granted by the [Authorization for Use of Military Force (2001)] and other statutes are limited by the international laws of war * * * is mistaken.' The Government agrees that this broad statement does not properly reflect the state of the law. The Government interprets the detention authority permitted under the AUMF, as informed by the laws of war. That interpretation is consistent with the Supreme Court’s decision in Hamdi v. Rumsfeld (2006), and with longstanding Supreme Court precedent that statutes should be construed as consistent with applicable international law.

Pp. 1-2 (citations switched to hyperlinks).
So said the United States' response to the petition for rehearing of the ruling of the U.S. Court of Appeals for the District of Columbia Circuit (courthouse above right) in Al Bihani v. Obama (2010). (Prior IntLawGrrls post) Indeed, in the body of its argument (pp. 6-9), the government repeated and expanded upon its nod to international law. In so doing, it cited case law familiar to those of us who labor in this field. For example:
► Murray v. Schooner Charming Betsy (1804), a precedent from the Court of Chief Justice John Marshall, was cited for the proposition that "an act of Congress ought never to be construed to violate the law of nations, if any other possible construction remains."
► United States v. Yunis (D.C. Cir. 1991), a judgment (by a panel included then-Judge Ruth Bader Ginsburg, along with then-Chief Judge/now IntLawGrrls guest/alumna Patricia M. Wald and the opinion's author, Abner Mikva) arising out of a 1985 cross-border, terrorism-linked hijacking. Yunis was cited for the proposition that "courts will not blind themselves to potential violations of international law where legislative intent is ambiguous."
Notably, the U.S. position in this brief stands at odds with that taken in the Military Commissions Act of 2006; in section 5(a), Congress forbade anyone to "invoke the Geneva Conventions or any protocols thereto in any habeas corpus or other civil action ... as a source of rights in any court of the United States or its States or territories."
At both junctures of its Al-Bihani brief, however, United States argued that international law offers no reason to grant the detainee's petition for rehearing. Here's page 2:

[N]one of this changes the outcome ... The panel majority specifically addressed and properly rejected petitioner’s argument under international law. That unanimous ruling is correct and does not warrant rehearing or rehearing en banc.

What the government giveth ....

Stevens on targeted killing

As detailed via quotes in the post below, the Legal Adviser to the U.S. Department of State, Harold Hongju Koh (below left), yesterday outlined a multi-pronged defense of the Obama Administration's use of drones for targeted killings of presumed al Qaeda operatives. (photo credit) Among the statements made during Koh's keynote speech to the American Society of International Law was this:

[S]ome have argued that the use of lethal force against specific individuals fails to provide adequate process and thus constitutes unlawful extrajudicial killing. But a state that is engaged in armed conflict or in legitimate self-defense is not required to provide targets with legal process before the state may use lethal force.

Upon hearing these words, my mind jumped at once to my 2005 interview of U.S. Supreme Court Justice John Paul Stevens (above right), for whom I had the privilege of clerking and about whom I am writing a jurisprudential biography. (photo credit) Stevens served as a Navy codebreaker at Pearl Harbor from 1942-1945, and earned a Bronze Star for that service. The relevant passage from my 2006 article entitled John Paul Stevens, Human Rights Judge described Stevens' thoughts about perhaps the most famous targeted killing of World War II:

One event days before Stevens’s twenty-third birthday would stay with him for the rest of his life. The architect of the Pearl Harbor attack was Admiral Isoroku Yamamoto, who had learned English from a missionary and become a Babe Ruth fan while studying at Harvard in the 1920s. On April 14, 1943, Americans discovered that Yamamoto [right] was about to travel to the front. Unbeknownst to the Japanese, Stevens explained in an interview more than sixty years later, “We had broken the code.” On Roosevelt’s orders, U.S. pilots downed Yamamoto’s plane over a Solomon Islands jungle on April 18, Easter Sunday. “I was on duty on the day they brought the plane down,” Stevens said, “The message was, ‘We bagged one eagle and two sparrows,’ indicating success in the mission.” The kill buoyed the spirits of many, who knew that getting Yamamoto would, as Stevens put it, “have a tremendous strategic advantage.”

Stevens' own thoughts were more complex:

But the incident troubled the young officer. “I remember thinking that the planners must have engaged in a lot of deliberation before deciding to go along with the plan,” Stevens said. “I have read a number of books on it since and discovered that was not the case. They were concerned that targeting him would reveal that they had broken the code.” Accounts of the killing indicate that U.S. Admiral Chester A. Nimitz and others—in communications laced with foxhunting terms—debated only the tactical benefits and costs. “But they had no humanitarian concerns at all of the kind that troubled me,” Stevens said. That fact “kind of surprised me,” he continued, particularly given that Yamamoto “had spent time in the United States and had friendships among high-ranking American officers.”

Stevens reaffirmed this sensibility in a just-published New Yorker interview. There author Jeffrey Toobin tracked the Yamamoto account in my 2006 article (without, alas, citation to same). Implicitly linking the Yamamoto incident to his later discussion of Stevens' post-9/11 jurisprudence, Toobin contributed this insight:

The morality of military action became a lifelong preoccupation.

It's also worth noting that Stevens' concerns respecting that targeted killing had a profound effect on his capital punishment jurisprudence. The passage in my 2006 article thus continued:

Appearing before the Chicago Bar Association decades later, Stevens alluded to the event without naming the target. The Justice told his audience that the experience had sown doubts in his mind about another instance in which the state takes the life of a named individual; that is, capital punishment. Recalling that talk, Stevens affirmed that the Yamamoto incident led him to conclude that “[t]he targeting of a particular individual with the intent to kill him was a lot different than killing a soldier in battle and dealing with a statistic. . . . In my mind, there is a difference between statistics and sitting on a jury and deciding whether to kill a single person.”

As pointed out in note 178 of my article, Stevens revealed in a 1996 speech that, notwithstanding these doubts, at the time of his 1975 confirmation hearings, he did not himself know how he would vote on capital punishment. The Justice since has told me that in 1975 no Senator asked him his views, neither publicly nor privately. In 1976, he voted in Gregg and related cases to reinstate the death penalty. But as posted, in 2008, Stevens made public his conclusion that the death penalty, in all its applications, violates the 8th Amendment to the U.S. Constitution.

Stevens' linkage of targeted killing amid armed conflict with the targeting for execution of a convicted murderer provokes further thoughts:

► As my 2006 article observed,

That superior officers expressed no qualms in 1943 about targeting Yamamoto suggests earlier sources for Stevens’s “humanitarian” unease.

My 2010 article John Paul Stevens and Equally Impartial Government (now available in pdf here, and soon to be in print in the UC Davis Law Review) sets forth a story of Stevens's family that might have encouraged careful thought about the power of the state.

► It bears particular mention that although Stevens harbored what he called “humanitarian concerns” years before he would decide to enter law school, his were, fundamentally, the concerns of a lawyer. They signaled a visceral sense that the process of law, no less than law's substance, places valuable constraints on state power.

The quote at the very top of this post stands in conflict with that sense of justice.

Koh on targeted killing

There was much worth pondering in the keynote speech that Harold Hongju Koh (center left), since last June the Legal Adviser to the U.S. Department of State, delivered yesterday at the annual meeting of the American Society of International Law.
'Grrls will be posting on various aspects of that talk and others in short order. But we can't let a day go by without posting his remarks on unmanned aerial vehicles, better known as UAVs or drones (pictured below).
A few hours before Koh's speech, IntLawGrrls guest/alumna Mary Ellen O'Connell, newly elected an ASIL Vice President, had chaired a well-attended panel on the issue. Mary Ellen, who'd written a Balkinization post in support of Koh's nomination about this time last year, last December contributed an IntLawGrrls post outlining her legal concerns about the United States' use of drones in the AfPak conflict to target for killing persons believed to be al Qaeda operatives.
Thanks to ASIL's Sheila R. Ward, we set forth verbatim relevant quotes from Koh's speech, which you can watch in the video clip here.
Koh, formerly the Yale Law Dean and an ASIL Counsellor, maintained that such use is legal, essentially embracing the "war" paradigm that many others have challenged. He stated:

[I]t is the considered view of this administration … that targeting practices, including lethal operations conducted with the use of unmanned aerial vehicles (UAVs), comply with all applicable law, including the laws of war…
As recent events have shown, Al Qaeda has not abandoned its intent to attack the United States, and indeed continues to attack us. Thus, in this ongoing armed conflict, the United States has the authority under international law, and the responsibility to its citizens, to use force, including lethal force, to defend itself, including by targeting persons such as high-level al Qaeda leaders who are planning attacks….

He then detailed how "this administration has carefully reviewed the rules governing targeting operations to ensure that these operations are conducted consistently with law of war principles"; specifically:

► First, the principle of distinction, which requires that attacks be limited to military objectives and that civilians or civilian objects shall not be the object of the attack; and
► Second, the principle of proportionality, which prohibits attacks that may be expected to cause incidental loss of civilian life, injury to civilians, damage to civilian objects, or a combination thereof, that would be excessive in relation to the concrete and direct military advantage anticipated.

Koh endeavored to assure his audience that in

U.S. operations against al Qaeda and its associated forces – including lethal operations conducted with the use of unmanned aerial vehicles – great care is taken to adhere to these principles in both planning and execution, to ensure that only legitimate objectives are targeted and that collateral damage is kept to a minimum.

Addressing critics of the policy, he continued:

[S]ome have suggested that the very use of targeting a particular leader of an enemy force in an armed conflict must violate the laws of war. But individuals who are part of such an armed group are belligerent and, therefore, lawful targets under international law....
[S]ome have challenged the very use of advanced weapons systems, such as unmanned aerial vehicles, for lethal operations. But the rules that govern targeting do not turn on the type of weapon system involved, and there is no prohibition under the laws of war on the use of technologically advanced weapons systems in armed conflict – such as pilotless aircraft or so-called smart bombs – so long as they are employed in conformity with applicable laws of war….
[S]ome have argued that the use of lethal force against specific individuals fails to provide adequate process and thus constitutes unlawful extrajudicial killing. But a state that is engaged in armed conflict or in legitimate self-defense is not required to provide targets with legal process before the state may use lethal force.

[On this boldfaced statement, consider the rather different view in my post above, which reprints a passage, from my 2006 article, that recounts Justice John Paul Stevens' concerns regarding a targeted killing in which he and other Navy codebreakers played a role -- the killing in 1943 of Admiral Isoroku Yamamoto, architect of Japan's attack on Pearl Harbor.]
Koh maintained that due precautions are taken even without the interposition of due process:

Our procedures and practices for identifying lawful targets are extremely robust, and advanced technologies have helped to make our targeting even more precise. In my experience, the principles of distinction and proportionality that the United States applies are not just recited at meeting. They are implemented rigorously throughout the planning and execution of lethal operations to ensure that such operations are conducted in accordance with all applicable law….

Finally, Koh cited domestic law as an independent justification:

[S]ome have argued that our targeting practices violate domestic law, in particular, the long-standing domestic ban on assassinations. But under domestic law, the use of lawful weapons systems – consistent with the applicable laws of wear – for precision targeting of specific high-level belligerent leaders when acting in self-defense or during an armed conflict is not unlawful, and hence does not constitute ‘assassination.’

Work On! Teaching International Humanitarian Law West

We've blogged before on workshops offered by the International Committee of the Red Cross to professors (of law and otherwise) interested in integrating international humanitarian law into their curricula. This April 9-10, Berkeley under the leadership of Professor Kate Jastram (below left) will host another such workshop. Here are the details:

On April 9-10, 2010 the University of California, Berkeley Law School and the International Committee of the Red Cross (ICRC) will convene the first West Coast Teaching International Humanitarian Law (IHL) Workshop at the University of California, Berkeley. The Workshop is targeted at law professors interested in teaching an IHL course for the first time, integrating IHL modules into their current courses and/or rethinking their current teaching of this important subject.


Topics covered will include:

• Defining the scope and content of an IHL class;
• Exploring the intersection between international human rights law, international humanitarian law, international criminal law, and public international law (and the jus ad bellum);
• Incorporating IHL modules into the teaching of classes such as public international law, national security law, immigration law; constitutional law; administrative law and more;
• dentifying strategies for developing curricula, responding to current events, and gaining support from school administrations for the teaching of IHL.

The Berkeley Law Teaching IHL Workshop is an outcome of the 2007 ICRC/American University Washington College of law study, Teaching International Humanitarian Law in US Law Schools, which concluded that student demand for IHL courses is high but faculty needs better resources, materials and support to expand the teaching of IHL in law schools in the US. This Workshop is an attempt to address those needs.

Confirmed participants and topics include:

Larry Johnson & Gabor Rona (Columbia) (right and below right) on Intersections with Human Rights and International Criminal Law.

IntLawGrrl Beth Van Schaack (Santa Clara) (left) and Trevor Rush (U.S. Army JAG Legal Center and School) (Jus in Bello and Jus ad Bellum)

Geoff Corn (South Texas College of Law) (left) and Eric Jensen (Fordham) (Integration of IHL into Different Subject Areas)

Gary Solis (Georgetown) on Hot Topics in IHL.



To register or for more information on the Teaching IHL Workshop, please visit here or contact teachingihl@berkeley.edu

On December 8

On this day in ...
... 2005, at a diplomatic conference, states parties to the 1949 Geneva Conventions on the laws of war established establishes a new emblem -- the red crystal -- that serves alongside the red cross and red crescent as symbols of the International Committee of the Red Cross, the nongovernmental organization charged with monitoring compliance with Geneva law. The move occurred by way of adoption of the Third Additional Protocol to the Geneva Conventions, which entered into force in 2007 and now has 51 states parties, among them the United States. (image credit)

(Prior December 8 posts are here and here.)

Drones and the Law: What We Know

(IntLawGrrls is pleased to welcome back alumna Mary Ellen O'Connell, who contributes this guest post)

The New York Times reported last week that the U.S. would be increasing its drone strikes into Pakistan. The article attributes the following comment to Philip Alston:

it is impossible to judge whether the program violates international law without knowing whether Pakistan permits the incursions, how targets are selected and what is done to minimize civilian casualties.

Alston’s job as UN special rapporteur for extrajudicial executions is to get this information. It makes sense for him to state his concerns in a form designed to entice cooperation from the United States.
But international lawyers already have sufficient information to draw conclusions about the legality of drone use in Pakistan. We know first and foremost that the use of drones to fire missiles and drop bombs is only lawful during actual hostilities of armed conflict — drones are a war-fighting tool, not a law-enforcement tool. (photo credit) Yet, many U.S. attacks have occurred when there has been no fighting in Pakistan. During the last nine months when there has been fighting, few U.S. strikes have been of assistance to Pakistan.
Pakistani intelligence services or the military have apparently cooperated with the United States on strikes, but under international law, it should be the elected civilian officials who provide a state’s consent for foreign military operations. The New York Times article quoted the Pakistani Prime Minister as saying

the drone strikes 'do no good, because they boost anti-American resentment throughout the country.'

The United States should not be undermining civilian control in Pakistan by failing to seek the consent of civilian authorities. Nor should we settle for less than express, public consent that cannot later be denied.
We also know CIA operatives are carrying out the strikes in Pakistan, not the U.S. military. CIA operatives, however, are not part of the United States' armed forces. They do not wear uniforms, are not in the chain of command, and are not trained in the law of armed conflict. They have no right to kill in combat.
And we know that in the attempt to kill about a dozen individuals on the CIA’s "kill" list 80-some strikes have been carried out and almost 800 persons have been killed. Yet, killing suspected leaders has little long-term impact on militant organizations in a context like Pakistan. If a military objective cannot be achieved, killing violates the principle of military necessity.
A CIA spokesman quoted in the Times article says that it is "flat-out false" that hundreds of civilians have been killed by CIA strikes. But we know that the CIA has little, if any information about its victims. In such situations, the principle of humanity requires that we assume persons are civilians, not fighters. Law enforcement methods must be used against civilians, not the war-fighting mechanism of the unmanned drone. Killing many civilians in the attempt to kill a single fighter violates the principle of proportionality.
In sum, we know plenty.

(For a more detailed analysis of the law on drones, see my article entitled Unlawful Killing with Combat Drones.")

On December 3

On this day in ...
... 1914 (95 years ago today) , during World War I, Belgians, who'd been occupied over the course of recent months by the forces of the German Kaiser Wilhelm II, were delivered this proclamation:

His Majesty, the Emperor and King, having deigned to appoint me Governor-General in Belgium, I have to-day assumed the direction of affairs.
BARON VON BISSING. Brussels, December 3, 1914.

The rule of Moritz Ferdinand Freiherr von Bissing (above right), a Prussian military general, would be marked by collective punishments (violative of the Article 50 of the Annex to the 1907 Hague Convention No. IV respecting the Laws and Customs of War on Land) and other harsh measures. Bissing signed the death warrant of a British nurse working with the Red Cross in Brussels -- Edith Cavell (left), who'd organized an underground network through whch Allied soldiers escaped Belgium.

(Prior December 3 posts are here and here.)

'Nuff said

(Taking context-optional note of thought-provoking quotes)

But above all, I accepted because I believe deeply in the rule of law and the laws of war, and the principle that in armed conflict civilians should to the greatest extent possible be protected from harm.

-- Richard Goldstone (right), former Chief Prosecutor at the International Criminal Tribunals for the former Yugoslavia and Rwanda and former Justice of South Africa's Constitutional Court, in Justice in Gaza, an op-ed discussing his recent service as head of the U.N. Fact-Finding Mission on the Gaza Conflict. Commissioners -- Goldstone, LSE Professor Christine Chinkin, Pakistan Supreme Court Advocate Hina Jilani, and Irish Colonel Desmond Travers -- issued a report to the Human Rights Council (newest member: USA), finding war crimes on both sides, in mid-September. The report's available in full here.

The Curious Case of Mohammed Jawad

Mohammed Jawad (right) apparently travelled from his native Pakistan to Afghanistan to take a job clearing mines. On or about December 17, 2002, when he was somewhere between 12 and 16 years old (prior post), Jawad was captured fleeing the scene of a grenade attack. He was accused of tossing a grenade into the window of a jeep carrying two U.S. soldiers, Sergeants First Class Michael Lyons and Christopher Martin, and their interpreter, Assadullah Khan Omerk; the three were wounded in the attack.

Upon capture, Jawad was first taken to Bagram Air Base in Afghanistan and then to the Naval Base at Guantánamo. A victim of the so-called frequent flier program, which involved waking detainees up every couple of hours to change cells, Jawad has apparently tried to kill himself while in detention by slamming his head repeatedly against a wall. His Combatant Status Review Tribunal and Annual Review Board proceedings, which confirm his status as an enemy combatant, are available here.

Jawad apparently confessed to the crime at one point, but later recanted, arguing that his confession was the result of torture. The military commission set to prosecute him has ruled it will not look at evidence produced during particular interrogations; the U.S. government recently indicated it would not seek to invoke such evidence in the habeas corpus action proceeding in federal court. (See here for the latest development in this admissibility-of-evidence issue.)

On October 11, 2007, Jawad was charged before a military commission with three counts of attempted “murder in violation of the law of war” (in violation of 10 U.S.C. §§ 950t (defining attempts) and 950v(b)(15)) and three counts of “intentionally causing serious bodily harm” (in violation of 10 U.S.C. §950v(b)(13)). “Murder in violation of the law of war” is defined by the Military Commission Act of 2006 as

(15) MURDER IN VIOLATION OF THE LAW OF WAR.—Any person subject to this chapter who intentionally kills one or more persons, including lawful combatants, in violation of the law of war shall be punished by death or such other punishment as a military commission under this chapter may direct.

The crime of intentionally causing serious bodily injury is formulated as follows:

(13) INTENTIONALLY CAUSING SERIOUS BODILY INJURY.—

(A) OFFENSE.— Any person subject to this chapter who intentionally causes serious bodily injury to one or more persons, including lawful combatants, in violation of the law of war shall be punished, if death results to one or more of the victims, by death or such other punishment as a military commission under this chapter may direct, and, if death does not result to any of the victims, by such punishment, other than death, as a military commission under this chapter may direct.

(B) SERIOUS BODILY INJURY DEFINED.—In this paragraph, the term
‘serious bodily injury’ means bodily injury which involves—

(i) a substantial risk of death;
(ii) extreme physical pain;
(iii) protracted and obvious disfigurement; or
(iv) protracted loss or impairment of the function of a bodily member, organ, or mental faculty.

His charge sheet is available here (and see prior post).

Most military commission proceedings have been suspended pending a final decision from the Obama Administration about whether to try to salvage the Bush Administration’s military commissions or transfer all prosecutable detainees to federal criminal custody. Even if the Obama Administration does fully revive the military commission scheme in some form or another, a question remains as to the legality of the charges against Jawad. Hamdan v. Rumsfeld (2006) made clear that military commissions may only assert jurisdiction over violations of the law of war. This leads to the inescapable question of whether the particular charges leveled against Jawad are in fact violations of the law of war.

The 1949 Geneva Conventions and their 1977 Protocols, the latter of which the U.S. has not ratified, set forth a number of war crimes that are prosecutable when they are committed against so-called “protected persons.” Persons protected by the Conventions are civilians and combatants who are hors de combat [outside of combat] by virtue of illness, injury, capture, or surrender. These “grave breaches” of the treaties include:
► wilful killing,
► torture or inhuman treatment, including biological experiments,
► wilfully causing great suffering or serious injury to body or health,
► unlawful deportation or transfer or unlawful confinement of a civilian,
► compelling a protected person to serve in the forces of a hostile Power,
► wilfully depriving a protected person of the rights of fair and regular trial prescribed in the present Convention,
► taking of civilian hostages, and
► extensive destruction and appropriation of civilian property, not justified by military necessity and carried out unlawfully and wantonly.

Combatants who are active and thus not hors de combat do not constitute protected persons; accordingly, they cannot be the victims of grave breaches. Additional war crimes exist in customary international law and trace their provenance to the Hague tradition of international humanitarian law concerned with regulating means and methods of warfare. Certain violations of the regulations appended to the 1907 Hague Convention (IV) respecting the Laws and Customs of War on Land — including killing or wounding treacherously, employing weapons that cause unnecessary suffering, bombarding undefended towns, and pillage — are, for example, prosecutable as war crimes before federal courts pursuant to the War Crimes Act. By now, most Geneva and Hague crimes have been the subject of war crimes trials before the ad hoc criminal tribunals.

Attacking a privileged combatant (or “lawful combatant” in the lexicon of the Military Commissions Act) is not, in and of itself, a war crime so long as proportionate force and permissible weapons are used (i.e., weapons not intended to cause unnecessary suffering such as asphyxiating gases). Indeed, attacks between privileged combatants are the very essence of warfare. An attack on a privileged combatant is not a war crime even if perpetrated by an unprivileged combatant, such as Jawad is alleged to be. To be sure, there are consequences within the law of war when unprivileged combatants directly participate in hostilities. (See Article 51(3) of Protocol I and Article 13(3) of Protocol II — protecting civilians from attack unless and for such time as they take a direct part in hostilities). In particular, when unprivileged combatants directly participate in hostilities without the privilege of doing so, they no longer benefit from civilian immunity and are subject to attack. Such individuals can also be captured and prosecuted for violations of the operative domestic law (such as murder, assault, battery, reckless endangerment, and mayhem). Or, they can be prosecuted under international law for using unlawful weaponry. They may also be guilty of terrorism, although even this is contested.

But unprivileged combatants commit no known war crime by directly participating in hostilities without the privilege of doing so simpliciter. In other words, Sergeants Lyons and Martin would have been entitled to use deadly force against Jawad had they seen him prior to his alleged attack. The attack itself, however, does not constitute a war crime. That said, it is, undoubtedly, a violation of Afghani law and could be prosecuted as such. (It would be a violation of U.S. law only if that law applied extraterritorially).

The only crime enumerated in the Military Commissions Act that might be applicable here, although it was not charged, is perfidy (which is akin to the Hague Convention crime of killing or wounding treacherously). The MCA defines the crime of perfidy as follows:

(17) USING TREACHERY OR PERFIDY.—Any person subject to this chapter who, after inviting the confidence or belief of one or more persons that they were entitled
to, or obliged to accord, protection under the law of war, intentionally makes use of that confidence or belief in killing, injuring, or capturing such person or persons shall be punished, if death results to one or more of the victims, by death or such other punishment as a military commission under this chapter may direct, and, if death does not result to any of the victims, by such punishment, other than death, as a military commission under this chapter may direct.

The essence of perfidy is giving the impression of being a protected person (i.e., a civilian in Jawad’s case) in order to take advantage of civilian immunity while behaving like a combatant. It is not clear why the military commission prosecutors have not been charging perfidy in more unprivileged combatant cases other than because it does not carry the moral stigma, rhetorical punch, or basic name recognition of an attempted murder charge. They would do well to do so: such a charge stands on firmer legal ground than the dubious war crimes of the murder of or injury to a lawful combatant.
For more on the Jawad case, see here.

On June 5

On this day in ...

... 1794 (215 years ago today), Congress approved the Neutrality Act of 1794 which provided guidelines to ensure that the United States remained neutral in time of war. Among other things, it prohibited the outfitting of foreign belligerent vessels in U.S. ports and the recruitment by foreign belligerents of U.S. sailors or soldiers inside U.S. territory. Violation of its terms constituted a crime.

... 1944 (65 years ago today), having been liberated from Nazi German occupation the night before by the arrival of American troops, "[t]he people of Rome have crowded onto the streets to welcome the victorious Allied troops," as depicted in this video clip. It would be many months, however, before the rest of Italy was freed.

(Prior June 5 posts are here and here.)

On April 9

On this day in ...
... 1987, in RWDSU v. Saskatchewan, in which locals of the Retail, Wholesale and Department Store Union, along with other unions, challenged laws in several provinces, the Supreme Court of Canada held that there was no constitutional right to strike. They thus rejected the argument that the 1982 Canadian Charter of Rights and Freedoms -- stating in relevant part "2. Everyone has the following fundamental freedoms: ... d) freedom of association." -- includes such a right. The lone woman on the Court, Justice Bertha Wilson (left), was also the lone dissenter from this decision.
... 1609 (400 years ago today), Spain and Netherlands signed the Treaty of Antwerp, which ended nearly a half-century of hostilities between northern Netherlands and Spanish rulers and marked the beginning of the Twelve Years Truce, . In its announcement of an upcoming conference commemorating this quatrocentenary, Tilburg University continues:

Whereas at the expiration of the Truce in 1621, the war would resume for another quarter century, no serious strategic attempts were made any more by Madrid to re-conquer the Northern Netherlands.
The Twelve Years Truce did not only lay out the groundwork for the future final peace settlement in political terms, but also in legal terms. ...
Between the late 15th and late 17th centuries, peace treaties became much more elaborate legal instruments than they had been before. The legal principles, concepts and rules which were developed within the peace treaties of that period came to form a major part of the classical law of nations, and to its hardcore, the laws of war and peace. The Truce of Antwerp and papers documenting its negotiation process constitute important formative as well as informative sources for the laws of war and peace of the Early Modern Age.

Details on this conference, to be held April 23 & 24, are here. (credit for photo of Antwerp's circa 1580 Guildhouses)

(Prior April 9 posts are here and here.)

One Stop Researching

We’ve blogged before on the principle of legality in international criminal law, the purported inapplicability of statutes of limitation for war crimes and crimes against humanity, the thorny problem of combatant/civilian classification under international humanitarian law (IHL), and existing war crimes under treaty or customary international law. A relatively recent case from the European Court of Human Rights (ECHR--photo at right) Kononov v. Latvia touches on all these issues at once.

The case concerned WWII-era allegations that a commando unit composed of members of the Soviet Red Partisans (propaganda poster at left) attacked a Latvian village that had been occupied by the Germans on suspicion that the villagers had earlier collaborated to expose another commando unit hidden in the village. In reprisal, the Partisans brutally murdered about a dozen inhabitants (some of whom were burned alive) and pillaged their belongings. Mr. Vassili Makarovich Kononov was alleged to have been part of the group, although he claimed that he had not entered the village with his unit because he had been raised there and feared for the safety of his parents. In defense of the actions of his unit, he argued that the victims had all been armed collaborators rather than innocent civilians.

After Latvia’s independence from the Soviet Union was restored in 1990, its Supreme Council on April 6, 1993 amended the Latvian Criminal Code to include provisions criminalizing genocide, crimes against humanity and peace, war crimes, and racial discrimination. In particular, a new Article 68-3 enumerated several war crimes, with a range of sentences up to life imprisonment. The same legislation included two important provisions:

• Article 6-1, which permitted the retrospective application of the criminal law with respect to crimes against humanity and war crimes, and
• Article 45-1, which exempted such offences from statutory limitation.
  

The applicant (all the other individuals involved had since passed away) was eventually prosecuted for war crimes in violation of the laws and customs of war as contained in Hague Convention of 1907, the 4th Geneva Convention, Protocol I, and the Nuremberg Charter. Much of the evidence introduced at trial, including a draft autobiography, suggested that the defendant played a more active role than he was admitting. Although the trial court convicted him, the judgment was quashed on the grounds that the questions of whether the victims were civilians or combatants and whether the territory had been occupied by the Soviet Union as well as Germany were insufficiently reasoned. On the second go-round, the defendant was convicted of banditry, but acquitted of war crimes, on the grounds that although the operation was carrying out an order from a military court against the victims, the Partisans had exceeded their lawful authority in its execution. Banditry, however, remained subject to a statute of limitations and so the second conviction was also quashed.

On appeal, the conviction for war crimes (specifically acts of treacherous killing, attacks on undefended villages, attacks on family honor, violence to life and person, murder, collective penalties, reprisals, and pillage) was reinstated (although there was insufficient evidence that the defendant himself had murdered or tortured certain individuals so these charges were dropped). The appeals court reasoned that the victims all remained civilians, even if they may have:

• received arms from German occupiers to defend themselves,
  
• assisted the German occupying army in locating Partisans hiding among them, and
  
• been members of the Latvian National Guard so long as they did not take part in military operations organized by the armed forces of a belligerent party.

The fact that the territory may have been under dual German/Soviet occupation, such that the victims and perpetrators may have shared an effective nationality, was also of no moment. There was no evidence that any of them had performed any military function, and all had posthumously been “rehabilitated” on a finding that there was no evidence they had committed crimes against the peace, against humanity or taken part in political repression by the Nazi regime. The applicant, by contrast, was determined to be a combatant, privileged to participate directly in hostilities by virtue of being a member of a platoon organized and led by the armed forces of one of the belligerent parties. The applicant’s appeal was rejected by the Supreme Court Senate on the ground that the crimes in question were not subject to any statutory limitation and in any case the limitations period had tolled by virtue of Soviet occupation.

Kononov, with Russia intervening, appealed his conviction to the European Court of Human Rights (right), arguing a violation of Article 7, which sets forth the principle of legality and specifically the prohibition against ex post facto legislation. ¶¶ 94-107. In defense of the conviction, Latvia argued that

• the acts in question violated general principles of law and customary IHL—even though the extant treaties did not give rise to individual criminal responsibility—and Latvian/Soviet domestic law, which at the time included so called “military crimes”;
  
• there was continuity in the local law such that the defendant could not have presumed that the acts had been de-criminalized;
  
• the acts in question had never been entirely subjected to statutory limitations; and
  that the applicant could not reasonably have thought his conduct was lawful under the circumstances. ¶¶ 77-93.
  

In a close (4-3) vote, an ECHR Chamber found the prosecution violated Article 7 of the European Convention. On the question of whether the domestic or international law applied to applicant’s acts was sufficiently accessible and foreseeable at the time he acted, the Chamber noted that only the 1907 Hague Convention was in existence during WWII, although neither the USSR nor Latvia had ratified it. Nonetheless, its provisions constituted customary law and were applicable to the “impugned events”. ¶ 120-21. Turning to the facts, the Court ruled that it could not be concluded, especially in light of the domestic courts’ summary reasoning, that the attack in question was not per se contrary to the laws and customs of war as codified within the Hague Convention. ¶ 137. In particular, it noted that the Red Partisans had legitimate grounds to assume that the villagers were not “peaceable inhabitants” under the circumstances, but rather were active collaborators with the German Army. ¶ 130. Accordingly, the villagers must have known that they were vulnerable to attack/reprisal by siding with one of the belligerent parties. ¶ 130.

There is an interesting gendered perspective on this ruling, as the Court considered the conduct of the male and female villagers separately. ¶ 126. With regard to the women, the Court surmised that they too may have lost their civilian status by virtue of “by providing genuine, concrete assistance to [the group] who collaborated with the Nazi occupier” (the women had apparently guarded the barn where the killed Partisans had been hiding while the men went to fetch the German forces). ¶ 139. Had the women’s deaths been due to an abuse of authority, that crime—which existed only under general law—had become time barred and it would be impermissible for Latvia to “revive” liability by later extending the statute of limitations. ¶ 143.

The Court rejected Latvia's retroactive applicability of the definition of civilian or the presumption of civilian status contained in Article 50 of Protocol I; rather, the Court looked to Article 5 of the 4th Geneva Convention, which acknowledges that civilians may lose certain protections if they abuse their civilian status. ¶ 131. The Court also summarily concluded that the act could not be regarded as criminal according to the general principles of law recognized by civilized nations either. ¶ 147. All told, the Court ruled that the accused could not have foreseen that he might be prosecuted for the events in question given the state of international and domestic law at the time. The case is on appeal to the Grand Chamber.

Stay Tuned!

Read On! "The Dark Side"

(Read On! ... occasional posts on writing we're reading)

The Dark Side: The Inside Story of How the War on Terror Turned into a War on American Ideals (Doubleday, 2008) by Jane Mayer (below right) is making a big splash this summer. It’s landed on the New York Times bestseller list and sent its author to countless interviews, including appearances last week with Bill Moyers and David Letterman.

Despite its grim title, Mayer’s book does more than call out villains (a fairly despicable David Addington stars as Public Enemy No. 1, but many others lurk alongside). In both her book (its dedication professes her “love of American history and admiration for those who have fought to fulfill the promise of the country’s ideals”) and interviews (on Letterman she said that there are “many good guys in the military, and in the FBI”), Mayer is careful to give credit to those who resisted “the dark side”.

Among those who come out best in her account are uniformed military lawyers. Mayer documents how the JAG corps was bypassed, ignored, and isolated while key decisions were made about military commissions, the laws of war, and the rules regarding the treatment of prisoners. This is not a new interpretation; Mayer’s narrative echoes charges made repeatedly in press coverage (including her own work in The New Yorker, about which IntLawGrrls earlier posted here and here) of the White House’s frequent dismissal of military legal expertise. For example, in the drafting of the military commission order, the services’ top lawyers were “marginalized,” in the words of Rear Admiral Donald J. Guter (88) (Guter is now Dean of Dusquesne Law School in Pittsburgh), and ultimately blind-sided by the rash proposal to authorize a new version of military commissions. The infamous “torture memos” triggered shock and outrage from many military lawyers, Mayer writes on p. 232:

The memos from uniformed lawyers to the politically appointed general counsel were brimming with barely concealed disbelief at the direction the Justice Department was proposing for soldiers to take.

Mayer draws on interviews, government reports, legal analyses, and an already extensive body of scholarship to build a damning critique of post 9/11 legal conclusions and political actions. But not yet answered is the central historical question: Why did the U.S. adopt legal and military practices so wrongful in the face of such powerful opposition? Judge advocates and other officials who realized, in real time, that grave mistakes were being made could not stop the Bush administration despite what Mayer casts as truly valiant efforts.

The hubris of a few misguided individuals may be enough explanation for now. But eventually, we have to reconcile the impotence of Mayer’s “good guys” with her faith in American ideals-- and her hope for the future.

(Cross-posted at Legal History Blog)